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THE DISTRICT ATTORNEY FOR THE NORFOLK DISTRICT, Petitioner,
JUSTICES OF THE QUINCY DISTRICT COURT, Respondents.
TRUSTEES OF BOSTON UNIVERSITY d/b/a WBUR-FM and OPENCOURT Intervenor.
ANTHONY BENEDETTI, CHIEF COUNSEL, COMMITTEE FOR PUBLIC COUNSEL SERVICES Petitioner,
JUSTICES OF THE QUINCY DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT OF THE COMMONWEALTH Respondents.
TRUSTEES OF BOSTON UNIVERSITY d/b/a WBUR-FM and OPENCOURT Intervenor.
OPPOSITION OF THE JUSTICES OF THE QUINCY DISTRICT COURT TO THE NORFOLK DISTRICT ATTORNEY'S EMERGENCY PETITION UNDER G.L. C. 211, § 3 AND ANTHONY BENEDETTI'S PETITION FOR RELIEF PURSUANT TO G.L. C. 211, § 3
Introduction The Respondent Justices of the Quincy Division of the District Court Department ("Quincy District Court Justices") hereby respond to the Norfolk District Attorney's Emergency Petition under G.L. c. 211, § 3 ("Norfolk District Attorney Petition") and to Anthony Benedetti, Chief Counsel, Committee for Public Counsel Services' Petition for Relief pursuant to G.L. c. 211, § 3 ("CPCS Petition"). Background The OpenCourt project, which is operating in the Quincy Division of the District Court, gives rise to both the Norfolk District Attorney's and CPCS's Petitions. The OpenCourt project is a pilot program under which, since May 2011, public radio station WBUR-FM has "livestreamed" audio and video of the proceedings in the First Session of the Quincy District Court, the arraignment session, over the internet and posted those recordings on the OpenCourt website.
The First Justice of the Quincy District Court, the Honorable Mark S. Coven ("Judge Coven"), has agreed to allow OpenCourt to "livestream" trials in the Court's Jury Room A ("the jury trial session") over the internet and to archive those recordings online. The Norfolk District Attorney and Anthony Benedetti, on behalf of CPCS, have asked this Court to bar that coverage.
The Quincy District Court Justices respectfully refer the Court to the Amended Memorandum of Decision and Order on Verified Complaints for Injunctive Relief ("Superior Court Memorandum"), which the Norfolk Superior Court, Fishman, 1., issued on July 16,2012 in The District Attorney for the Norfolk District v. Justices of the Quincy District Court, Civil Action No. NOCV2012-01120. See Exhibit 1, Superior Court Memorandum at 2-6. In that ruling, the court set forth the history of the OpenCourt project both before and after this Court's ruling on the project in Commonwealth v. Barnes, 461 Mass. 644 (2012).
Petitioners assert that, in allowing OpenCourt to cover the jury trial session, the Quincy District Court Justices would be acting contrary to the decision in Commonwealth v. Barnes, 461 Mass. 644 (2012). The District Attorney petitions this Court to exercise its superintendence power to bar the Quincy District Court Justices from expanding the OpenCourt program's coverage beyond the First Session until (1) further action by this Court; or (2) approval by the full Court of guidelines submitted by its Judiciary-Media Committee as directed in Commonwealth v. Barnes. Norfolk District Attorney Petition at 20. CPCS petitions the Court to bar any expansion of the OpenCourt project beyond the First Session until (1) further action by the Single Justice or the full Court; and (2) approval by the full Court of guidelines submitted by its Judiciary-Media Committee; and (3) "only after issuance of Revised Rule 1:19.,,2 CPCS Petition at 19.
Commonwealth v. Barnes Requires that the Court Employ the Least Restrictive Means to Protect Any Compelling Governmental Interest without Unduly Infringing the Freedoms of Speech and the Press The Supreme Judicial Court previously adjudicated three petitions for relief under
G.L. c. 211, § 3, that arose from the OpenCourt project. The Supreme Judicial Court for Suffolk County reported those petitions to the full Court. In ruling on the petitions and remanding them to the Single Justice for the entry of specific, dispositive orders, the Court wrote:
The Supreme Judicial Court adopted Revised Rule 1:19 (Electronic Access to the Courts) by an Order dated February 28,2012. However, the Court has postponed the effective date of the Revised Rule until September 17, 2012 so that judges, clerks, and security personnel throughout the state can be trained and develop protocols to comply with the Rule's provisions. See Order of June 6, 2012 and "Supreme Judicial Court Extends Start Date of SJC Rule 1: 19 Governing Electronic Access to the Courts to September 17, 2012" dated June 7, 2012 at http://www.mass.gov/courts/press/pr030212.html. There is no reason to delay the expansion of the OpenCourt program until Revised Rule 1: 19 becomes effective. The personnel at the Quincy District Court are already experienced in dealing with OpenCourt's operation and will be fully conversant with the interim guidelines adopted by Judge Coven for OpenCourt's proposed coverage of the jury trial session.
We conclude that any order restricting OpenCourt's ability to publish - by "streaming live" over the Internet, publicly archiving on the Web site or otherwise - existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest. Barnes, 461 Mass. at 646. Barring the Quincy District Court Justices from permitting OpenCourt to operate in the jury trial session is not "the least restrictive, reasonable measure necessary" to protect any compelling governmental interest. A less restrictive means of protecting any asserted compelling governmental interest would be to allow the Quincy District Court Justices to determine, in response to a party's specific objection, whether recording should be temporarily suspended for a particular proceeding or witness.
After Engaging in a Collaborative Process, Judge Coven Has Properly Balanced the Rights of All Parties in Admitting Open Court to Jury Room A In upholding the right of the OpenCourt project to cover the Quincy District Court
in Barnes, the Supreme Judicial Court noted: "we think it would be appropriate and in the spirit of ... rule [1: 19] for a set of guidelines to be prepared and submitted to this court for review." 461 Mass. at 661. After referring the development of such guidelines to the Judiciary-Media Committee, the Court wrote: "We will not require OpenCourt to suspend its operations pending the preparation, submission, and approval of these project guidelines." 461 Mass. at 662. The Court further wrote: We expect. however, that in the interim, OpenCourt, like all news media organizations, will' work with the court system, prosecutors offices, and the defense bar to safeguard the rights of criminal defendants as well as those of witnesses and alleged victims of crime.
461 Mass. at 662. OpenCourt has certainly made reasonable efforts and provided reasonable accommodations to protect the rights of parties, witnesses and victims. See generally Affidavit of John Davidow in Support of Response of Trustees of Boston University, d/b/a WBUR-FM and OpenCourt to Petitions under G.L. c. 211, § 3 of the District Attorney for the Norfolk District and Anthony Benedetti, Chief Counsel, Committee for Public Counsel Services ("Davidow Affidavit"). Judge Coven has engaged in a collaborative process to protect the rights of all interested parties. Subsequent to the Barnes decision, Judge Coven developed proposed interim guidelines for the webcasting of jury trials. Those guidelines were distributed to the interested parties on May 24,2012. On May 30, 2012, Judge Coven met with CPCS
staff attorneys, members of the Norfolk District Attorney's Office and representatives of the defense bar to hear their concerns about OpenCourt's proposed webcasting of jury trials in the Quincy District Court. In a letter to the Norfolk District Attorney on June 25, 2012, Judge Coven reported that he had carefully considered the concerns expressed in the District Attorney's letters of June 7 and June 11,2012. Judge Coven went on to state:
[W]e have made certain changes in our guidelines in response to concerns raised by your office. Specifically, trials will not be video streamed at all where a victim of sexual assault or domestic violence does not wish to appear on camera, where the victim or witness is a minor and where witnesses will be subjected to retaliation or placed in physical jeopardy. Letter of Honorable Mark S. Coven, First Justice, to District Attorney Michael W. Morrissey dated June 25,2012, Exhibit 2. While Judge Coven acknowledged that he had not satisfied all of the District Attorney's concerns, he noted that he had "attempted to balance your interest in protecting the rights of victims with the public's right to access
Jd., Exhibit 2. On the same date, June 25, 2012, Judge Coven
produced his amended interim guidelines ("June 25 Interim Guidelines"), Exhibit 3 hereto, which were distributed to the interested parties. Consistent with the Barnes decision, Judge Coven set forth guidelines that employed the least restrictive means to deal with the District Attorney's concerns without infringing upon the freedoms of speech and the press that Barnes recognized and upheld. Judge Coven carefully considered the sometimes conflicting concerns expressed by the District Attorney, CPCS and OpenCourt to ensure that OpenCourt's webcasting of jury trials under the June 25 Interim Guidelines would not prejudice any party. These efforts were consistent with the Court's admonition to Open Court in Barnes to work with the court and the parties "to safeguard the rights of criminal defendants as well as those of witnesses and alleged victims of crime." 461 Mass. at 662.3 Judge Coven's actions reflect a good faith effort to apply the principles of the Barnes decision appropriately while awaiting the Supreme Judicial Court's adoption of guidelines for the OpenCourt project. The application of Judge Coven's Interim Guidelines and the exercise of appropriate discretion by the jury session judge will protect the rights of parties, witnesses and victims without imposing an unconstitional prior restraint on OpenCourt's freedoms of speech and the press.
For example, as a result of concerns expressed by interested parties during their discussion with Judge Coven, OpenCourt agreed not to archive its video coverage of any trial until a verdict had been returned. Judge Coven included that provision in the June 25 Interim Guidelines. See Exhibit 3, ~ 8.
Supreme Judicial Court Rule 1:19 Invests the Quincy District Court Justices with Discretion to Permit OpenCourt to Cover Jury Room A Supreme Judicial Court Rule 1:19 provides, in pertinent part:
"A judge shall permit broadcasting, televising, electronic recording, or taking photographs of proceedings open to the public in the courtroom by the news media for news gathering purposes and dissemination of information to the public ... " subject to listed limitations. S.J.C. Rule 1:19.4 Rule 1:19 invests trial judges with discretion to address any argument that OpenCourt's recording should be temporarily suspended during a particular trial or even a particular witness's testimony. The objecting party bears the burden of asserting that he or she will be prejudiced by the recording. One limitation relevant to the proposed Open Court coverage of Quincy District Court's Jury Room A is that, "[d]uring the conduct of a jury trial, ajudge should not permit recording or close-up photographing or televising of bench conferences, conferences between counsel, or conferences between counsel and client" S.J.C. Rule 1:19(c). Under the same section of Rule 1:19, "[fJrontal and close-up photography of the jury panel should not usually be permitted." Rulel:19(c). OpenCourt's planned coverage of Jury Room A and Judge Coven's June 25 Interim Guidelines prevent photography of the jury and prevent audio
Like current Rule 1:19, Revised s.J.e. Rule 1:19, see note 1 supra, which will become effective on September 17, 2012, affords broad rights for electronic recording "by the news media for news gathering purposes and dissemination of information to the public .... " Revised Rule 1:19.2. The Revised Rule explicitly confers a discretionary power on judges to "impose other limitations necessary to protect the right of any party to a fair trial or the safety and well-being of any party, witness or juror, or to avoid unduly distracting participants or detracting from the dignity and decorum of the proceedings." Revised Rule 1: 19.2(b).
recording of attorney-client communications.
There will be no microphones on
counsel tables and the judge will have the ability to turn off audio recording during bench conferences. See Davidow Affidavit at ~~ 10 & 11 and Exhibit A thereto. Petitioners object that OpenCourt's coverage of Jury Room A will not provide reasonable advance notice of the news media's intent to broadcast or record in the courtroom. Absent such notice, Rule 1:19 permits, but does not require, the judge to refuse to admit the media. Rule 1.19(e). Rule 1:19 provides that, aside from specific, enumerated limitations, a judge may limit or temporarily suspend news media coverage only "if it appears that such coverage will create a substantial likelihood of harm to any person or other harmful consequence." Rule
1:19(a). In the first instance, the Quincy District Court should hear any claims of such harm. Subject to the parties' appellate rights, the Quincy District Court Justices should be able to exercise their discretion in determining whether to suspend coverage. Rule 1:19 is founded on the premise that recording will be allowed unless the trial judge is presented with specific circumstances that he or she, in his or her discretion, determines justify suspending the recording. This Court should not restrict the Quincy District Court Justices' discretion under Rule 1:19 to admit OpenCourt's cameras to the jury session and to address any party's objection on a case-by-case basis. Barring the Quincy District Court Justices from permitting OpenCourt to do any recording in Jury Room A would unreasonably restrict their
discretion under Rule 1:19. Rule 1:19 invests all Trial Court justices with discretion to admit electronic media to the courtroom. If the Quincy District Court Justices are barred from permitting OpenCourt to operate in the jury trial session, OpenCourt's only remedy will be to petition this Court under G.L. c. 211, § 3 in individual cases for the deprivation of its rights under Rule 1:19. Before these matters rise to the appellate level, the Quincy District Court Justices should have the authority to address OpenCourt's requests to record in the jury trial session and any objections to such requests. Directing the Quincy District Court Justices to deny any request by OpenCourt to record in the jury trial session will only necessitate appellate review of the Justices' automatic denials of requests that, in the exercise of sound judicial discretion, would have been allowed.
Conclusion For the foregoing reasons, the Justices of the Quincy Division of the District Court hereby respectfully request that the Court deny Norfolk District Attorney's
Emergency Petition under G.L. c. 211, § 3 and Anthony Benedetti, Chief Legal Counsel, Committee for Public Counsel Services' Petition for Relief under G.L. c. 211, § 3.
JUSTICES OF THE QUINCY DISTRICT COURT By their attorney,
D niel P.. ullivan, BBO No. 549788 Special A sistant Attorney General Administrative Office of the Trial Court Two Center Plaza, Suite 540 Boston, MA 02108 (617) 878-0210
August 2, 2012
CERTIFICATE OF SERVICE I, Daniel P. Sullivan, hereby certify that I served a true copy of the above document upon counsel of record this 2nd day of August 2012 by first-class mail, postage prepaid and, as a courtesy, by electronic mail.
COMMONWEAL TH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION NOS. 2012-1120 .> and 2012-1140 THE DISTRICT ATTORNEY FOR NORFOLK vs. JUSTICES OF THE QUINCY DIVISION OF THE DISTRICT COURT! AMENDED MEMORANDUM OF DECISION AND ORDER ON VERIFIED COMPLAINTS FOR INJUNCTIVE RELIEF2 INTRODUCTION This action arises from a planned expansion of media coverage by the OpenCourt pilot project in the Quincy District Court. Specifically, the First Justice of the Quincy District Court has agreed to allow OpenCourt to cover jury trials in Session A of the Quincy District Court, beginning July 16,2012. The Norfolk County District Attorney
and Anthony Benedetti, on behalf of the Committee for Public Counsel Services, have requested an injunction barring that expansion. For the reasons that follow, this Court takes no action on the request for injunctive relief, finding rather that the proper forum is the Supreme Judicial Court for determination of the issues raised pursuant to its power of superintendence over inferior courts. See G. L. c. 211, § 3.
I The other action joined herewith is brought by Anthony Benedetti, Chief Counsel, Committee for Public Counsel Services against the same defendant. The Trustees of Boston University, d/b/a WBUR-FM, and OpenCourt have been allowed to, intervene.
2 This Amended Decision is necessitated in order to correct a misstatement concerning the agreement of the parties delaying the expanded OpenCourt coverage, to correct the nature of the disposition given that this Court is likely without authority to report the matter to the Single Justice of the Superior Court as
previously Ordered, and to correct several typographical errors appearing in the original Memorandum.
~ CLERK OF THE COURTS
~\"\~ECEIVED & FILED
BACKGROUND The following facts are taken from the respective Verified Complaints for Injunctive Relief and from matters of public record of which judicial notice is appropriate. The OpenCourt pilot project began on May 2,2011, in the First Session of the Quincy District Court. It involved WBUR-FM, Boston's National Public Radio station, broadcasting live audio and video coverage of the proceedings in the First Session via Internet streaming; proceedings streamed by OpenCourt are also archived on WBUR's website. See, e.g., OpenCourt website, www.opencourt.us. last accessed July 12,2012. In its initial phase, OpenCourt was limited to coverage of arraignments, probation surrender hearings, substance abuse commitment hearings, summary process cases, and certain debt collection cases. The Supreme Judicial Court addressed several constitutional issues raised by OpenCourt in its decision in Commonwealth v. Barnes, 461 Mass. 644 (2012), ordering that: [WJhen one of our courts establishes or permits a pilot project related to an area of its work, it is generally the case that a set of guidelines or rules are issued to govern the pilot's operation. In the present case, particularly in light of the fact that the OpenCourt project differs from the traditional media approach to the use of cameras in the courtroom under [Supreme Judicial Court RJule 1:19, we think it appropriate and in the spirit of our rule for a set of guidelines to be prepared and submitted to this court for review and approval. We therefore refer the task to the Supreme Judicial Court's judiciary-media committee .... While the contents of any guidelines are for that committee to develop, issues that might be considered include . . . appropriate procedures to follow in cases where a party or Open Court itself indicates an intent to appeal from a judge's decision denying or allowing a motion to prohibit or limit OpenCourt's recording of a particular proceeding. Id at 661-662. The decision also expressly stated that the Court "will not require OpenCourt to suspend its operations pending the preparation, submission, and approval
of these project guidelines." [d. at 662. Following the Barnes decision, OpenCourt continued normal operation in the First Session. However, WBUR subsequently stated its intention to expand the scope of OpenCourt to cover jury trials in Session A of the Quincy District Court. On May 24, 2012, the First Justice of the Quincy District Court distributed a set of planned guidelines to govern the operation of Open Court's expanded coverage ("May Guidelines"). May Guidelines provided that: 1. There are certain categories of cases which will not be broadcast where the victim indicates that she/he does not want to be on camera, specifically in sexual assault and domestic violence cases. No witnesses who are minors The
will be broadcast or identified.
Cases where witnesses will be subject to retaliation or placed in physical jeopardy, for example cases involving gang violence, may not be broadcast[.] Cases involving undercover police officers or civilian informants will not be subj ect to broadcast. The camera has been arranged so that the jurors will not be on camera at any time. The judge will control the switch to turn off the audio during bench conferences. Microphones at the attorney table will not be connected to the videostream so as to protect attorney/client communications. The video stream will not be on archive until a verdict has been returned so that no one can watch the trial on archive during the course of the proceedings.
Following the distribution of the May Guidelines, the plaintiffs contacted the First Justice and voiced a variety of concerns regarding the May Guidelines. Specifically, they asserted that 1) the May Guidelines were not submitted to, or approved by, the Supreme
Judicial Court or its judiciary-media committee in accordance with the Barnes decision; 2) the May Guidelines might discourage participation in court proceedings by witnesses, victims, or defendants by creating an increased risk of embarrassment or retaliation based on their testimony; 3) minors or victims of sexual assault might be publicly identified in OpenCourt's coverage of court proceedings; 4) OpenCourt's coverage of court proceedings might compromise the confidentiality of attorney-client communications in court/ 5) the May Guidelines were incompatible with Supreme Judicial Court Rule 1:19 ("Rule 1: 19");4 and 6) the May Guidelines did not create a procedure, or set evidentiary standards, for parties to pursue motions to restrict or limit OpenCourt's coverage of court
This concern was directly addressed in Barnes. "Because the OpenCourt project uses the same mieropliones as-those used by the COUlt system to make the official' courtrecording, anything a defendant says to his attorney that is picked LIp by Op~nCourt Is also captured on the offlcial court recording. The defendantsand their counsel must.take exactly the same precautions 'to ensure that the'ir, conversations are not recorded as they would ifOpepCourt were net present in the court room." !d. at 660.
The version of Rule 1: 19 in place at the time provides as follows:
A judge shall permit broadcasting, televising, electronic recording, or taking photographs of proceedings open to the public in the courtroom by the-news media for news gathering purposes and dissemination of information to the public, subject, however, to the followirig limitations; (a) A judge may limit or temporarily suspend such news media coverage, if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence. (b) A judge should not permit broadcasting, televising, electronic recording, or taking photographs of hearings of motions to suppress or to dismiss or of probable cause or of voir dire hearings. (c) During the conduct of a jury trial, a judge should not permit reeording or close-up photographing or televising of bench conferences, conferences between counsel, or conferences between counsel and client. Frontal and clos-e-up phcitogra.rhy of the jury panel should not usually be permitted (e) A judge should require reasonable advance notice from the news media of their request to be present to broadcast, to televise, to record electronically, or to take photographs at a particular session. In absence of such 'notice, the judge may refuse to admit them. (h) A party seeking to prevent any of the coverage which is the subject of this Rule court for an appropriate order, but shall first deliver written or electronic notice to the Bureau Chief or Newspaper Editor or Broadcast Editor of the Associated as seasonably as the matter permits. The judge shall not hear the motion unless has certified compliance with this paragraph .... may move the of the motion Press, Boston, the movant
proceedings, or to take appeals from rulings on such motions. On June 17,2012, the Supreme Judicial Court announced that it would delay implementation of a revised version of Rule 1:19 until September 17, 2012. The delay was designed to create sufficient time for "[j]udges, clerks, and security personnel in 101 courthouses throughout the state [to] receive information and training in the coming months and [to] develop protocols to comply with the [revised] rule's provisions." Massachusetts Supreme Judicial Court, New SIC Rule On Cameras in Court Effective
Date belayed, available at hftp:llmasslawlib.blogspot.com12012106/new-sjc-rule-oncameras~ m-eourt. h1ml.
The revised rule is in most respects similar to the existing version of Rule 1:19, except that it confers a discretionary power on judges to "impose other limitations necessary to protect the right of any party to a fair trial or the safety and well-being of any party, witness, or juror, or to avoid unduly distracting participants or detracting from the dignity and decorum of the proceedings. If [a] request is to record multiple cases on the same day, a judge, in his or her discretion, may reasonably restrict the number of cases that are recorded to prevent undue administrative burdens on the court." Supreme Judicial Court Rule 1:19 (effective Sept. 27, 2012), available at http://WWWlawlib.state.ma.us/sGlU.ce/mass/rules/ s1 cIs] cl19 .htrnl. On June 25, 2012, the First Justice distributed the guidelines that he determined would govern OpenCourt coverage of jury trials in Session A ("June Guidelines"). The
June Guidelines were substantially similar to the May Guidelines, with the following differences: , 1. No sexual assault or domestic violence cases will be broadcast where the victim 5
indicates she/he does not want to be on camera. 2. No cases will be broadcast involving sexual assault or domestic violence cases where witnesses are minors. The plaintiffs maintain that the First Justice did not submit the May Guidelines or the June Guidelines to the Supreme Judicial Court or the Supreme Judicial Court's judiciary-media committee for review, and contend that his failure to do amounts to a violation of the order in Barnes referenced above. The plaintiffs seek an injunction against the expansion of OpenCourt beyond its initial phase. They request that this court specifically enjoin the Quincy District Court from allowing OpenCourt to cover trials or proceedings in any session of the Quincy District Court other than the First Session. They ask that the injunction remain in place until the Supreme Judicial Court approves guidelines submitted by its judiciary-media committee. The defendants, while maintaining that the Supreme Judicial Court rather that the Superior Court is the proper forum for resolution of the issues raised in these actions, agree through the First Justice that they will not permit the expanded coverage until the Single Justice of the Supreme Judicial Court has had an opportunity to address the issues raised herein. DISCUSSION As a threshold matter, this Court is not persuaded that it is the appropriate forum for the plaintiffs to seek the requested injunctive relief. The plaintiffs bring a challenge to the rules put in place by the Quincy District Court governing the administration of that court's business. It is "the [S]upreme [J]udicial [C]ourt [that] shall have ... general
superintendence of the administration of all courts of inferior jurisdiction, including, without limitation, the prompt hearing and disposition of matters pending therein .... t may issue such ... directions and rules as may be necessary or desirable for ... the improvement of the administration of such courts, and the securing of their proper and efficient administration .... " G. L. c. 211, § 3. Petitions for relief through the Supreme Judicial Court's superintendence power have been deemed appropriate to address illegality in court procedures. "The alleged '
violator of constitutional rights here is a court itself. The Legislature, in enacting G. 1. c. 211, § 3, has expressly authorized [the Supreme Judicial Court] to take cognizance of and, where appropriate, to remedy actions by courts of inferior jurisdiction that may adversely affect the administration of justice." Brantley v. Hampden Probate & Family Court Dept., 457 Mass. 172, 182 (2010) (Supreme Judicial Court "can and should" exercise its power of superintendence to stop institutionalized court practice of obtaining confidential information from Department Children and Families). "[T]he petitioner here alleges a systemic violation of constitutional rights by a court. Allegations of systemic abuses affecting the proper administration of justice are particularly appropriate for review pursuant to G. 1. c. 211, § 3." Id. at 183, citing Care'
& Protection of
Zita, 455 Mass. 272, 279 (2009). Specifically, the plaintiffs maintain
that the June Guidelines will compromise the rights and personal safety of various parties, victims and witnesses. "Where, as here, a systemic issue affecting the proper administration of the judiciary has been presented, resolution of the issue by [the Supreme Judicial C]ourt is appropriate and should not await some fortuitous 'opportunity of report or ordinary appeal." Simmons v. Clerk-Magistrate a/Boston Div. of Hous.
Court Dept., 448 Mass. 57,61 (2006). In addition, there is significant question as to whether the plaintiffs would have standing to pursue relief for hypothetical, future violations of the rights of as-yet unidentified parties, victims, and witnesses that the plaintiffs have no present authority to represent. "It is a general rule that, in order to have standing in any capacity, (a litigant must show that the challenged action has caused the litigant injury.'" Brantley, 457 Mass. at 181, quoting Slama v. Attorney Gen., 384 Mass. 620, 624 (1981) (emphasis added). The plaintiffs do not identify any specific legal right, particular to the Norfolk County District Attorney's Office or the Committee for Public Counsel Services that will be injured by operation of Open Court pursuant to the June Guidelines. Rather, the plaintiffs focus their allegations on potential harm to third parties - potential parties, victims, and witnesses, whose rights may be injured in the future. However, the issue of standing is not necessarily an obstacle to review under G. L. c. 211, § 3. "Under [the Supreme Judicial Court] superintendency role, considerations of direct harm, required in most cases, need not always serve as a barrier against judicial review where the alleged violator of the Constitution is a court itself and not the coordinate branches." ld. at 182. Thus, a petition for review by the single justice pursuant to G. L. c. 211, § 3 is the appropriate vehicle for the plaintiffs at this juncture. By agreement of the parties at oral argument, the First Justice will postpone the expansion of OpenCourt outside the First Session until the Single Justice of the Supreme Judicial Court has reviewed this matter. That postponement is consistent with the exercise of the First Justice's authority over the administration of court business in the Quincy District Court, and not an exercise of this 8
Court's power to issue injunctive relief.
For the foregoing reasons, the complaints for injunctive relief are hereby DENIED, with the understanding that the parties, other than the intervenor, have agreed that the expanded coverage will not occur until the issues raised in this action have been presented to the Single Justice of the Supreme Judicial Court for review pursuant to G. 1. c. 211, § 3.
DATED: July 16,2012.
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TRIAL COURT OF MASSACHUSETIS DISTRICT COURT DEPARTMENT - QUINCY DIVISION
DENNIS F. RYAN PARKWAY QUINCY, MASSACHUSETIS, 02169 (617) 471-1650
ARTHUR H. TOBIN
JAMES 1. BRENNAN
ACTING CHIEF PROBATION OFFICER
District Attorney Michael W. Morrissey 45 Shawmut Road Canton, MA 02021 Re: Open Court
Dear District Attorney Morrissey: I am in receipt of your letters regarding the extension of live video streaming of the trial session: . After review and careful consideration of your concerns, videostreaming will commence on Monday, July 9,2012. However, we have made certain changes in our guidelines in response to concerns raised by your office .. Specifically, trials willnot bevideostreamed.at all where a victim of sexual assault or domestic violence does not wish to appear on camera, where the victim or witness is a minor and where witnesses will be subjected to retaliation or placed in physical jeopardy. I know this may not satisfy all of your concerns, but I have attempted to balance your interest in protecting the rights of victims with the public's.right to access court proceedings. I look forward to continuing are work together .. Sincerely,
Open Court Work Group
From: Justice Mark S. Coven Date: June 25, 2012 Re: Videostreaming in Jury Room A
The videostreaming of trials in Jury Room A will commence on Monday, July 16,2012 subject to the following guidelines: 1. No sexual assault or domestic violence cases will be broadcast where the victim indicates she/he does not want to be on camera. 2. No cases will be broadcast involving sexual assault or domestic violence where witnesses are minors. 3. Cases where witnesses will be subject to retaliation or placed in physical jeopardy, for example cases involving gang violence, will not be broadcast. 4. Cases involving undercover police officers or civilian informants will not be subject to broadcast. 5. 6. The camera has been arranged so that the jurors will not be on camera at any time. The judge will control the switch to turn off the audio during bench conferences.
7. Microphones at the attorney table will not be connected to the videostream so as to protect attorney/client communications. 8. The videostream will not be on archive until a verdict has been returned, so that no one can watch the trial on archive during the course of the proceedings.
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